The Department of Health and Mental Hygiene released the newest Medical Assistance eligibility update which went into effect on August 10, 2010 (MR 154). The changes in this update are profound. It now allows a nursing home Medical Assistance recipient to use her income to pay for nursing home related expenses (up to 3 months retroactive) to the extent Medical Assistance does not cover said expenses (i.e. she has resources in excess of $2,500). This is a profound change by the Department and took many years of litigation by another respected elder law attorney to finally achieve this result. Bottom line, however, is can be a benefit for many families that are faced with outstanding nursing home expenses with no normal Medical Assistance coverage for said expenses.
Archive for the ‘Elder Law Updates’ Category
Using Income to Offset Nursing Home Expenses
Wednesday, September 1st, 2010 Adam RoaNursing Home Discharges
Tuesday, August 17th, 2010 Adam RoaOnce a resident is settled in a nursing home, being told to leave can be very traumatic. Nursing homes are required to follow certain procedures before discharging a resident, but a facility may occasionally attempt to “dump” an undesirable resident by transferring the resident to a hospital and then refusing to let the him or her back in. However, residents can fight back and challenge such discharges.
According to federal law, a nursing home can discharge a resident only for the following reasons:
- The resident’s health has improved
- The resident’s needs cannot be met by the facility
- The health and safety of other residents is endangered
- The resident has not paid after receiving notice
- The facility stops operating
Unfortunately, sometimes nursing homes want to get rid of a resident for another reason–perhaps the resident is difficult, the resident’s family is difficult, or the resident is a Medicaid recipient. In such cases, the nursing home may not follow the proper procedure or it may attempt to “dump” the resident.
If the nursing home transfers a resident to a hospital, Maryland law requires that the nursing home hold the resident’s bed for a certain number of days. Before transferring a resident, the facility must inform the resident about its bed-hold policy. If the resident pays privately, he or she may have to pay to hold the bed, but if the resident receives Medicaid, Medicaid will pay for the bed hold. In addition, if the resident is a Medicaid recipient the nursing home has to readmit the resident to the first available bed if the bed-hold period has passed.
In addition, a nursing home cannot discharge a resident without proper notice and planning. In general, the nursing home must provide written notice 30 days before discharge, though shorter notice is allowed in emergency situations. Even if a patient is sent to a hospital, the nursing home may still have to do proper discharge planning if it plans on not readmitting the resident. A discharge plan must ensure the resident has a safe place to go, preferably near family, and outline the care the resident will receive after discharge.
From www.elderlawanswers.com.
Maryland Now Allows Transfer to Pooled Trusts
Wednesday, July 21st, 2010 Adam RoaFor the past two years there have been questions as to whether Medicaid transfer-of-assets penalties would apply to transfers to pooled trusts by individuals age 65 and older. A Centers for Medicare and Medicaid Services (CMS) memo dated April 14, 2008, from Gale Arden (Baltimore) to Jay Gavens (Atlanta Region IV) stated that “only trusts established for a disabled individual age 64 or younger are exempt from application of the transfer of assets penalty provisions ( see section 1917(c)(2)(B)(iv) of the Act.)” This was followed in May 2008 by a Boston Regional Office bulletin stating that transfers to pooled trusts are subject to transfer penalties.
Not all states are imposing a penalty; some allow transfers to pooled trusts by people of all ages. The latest such state is Maryland. CMS stated that after researching this “complicated and nuanced” area of law, it had concluded that “[a]s a matter of policy, there is no age limitation imposed by existing federal or state law on who may transfer assets into a sub-account of a pooled trust. Accordingly, a disabled beneficiary 65 years of age and older may transfer assets into an approved pooled trust sub-account without penalty”.
According to a recent discussion on the National Academy of Elder Law Attorneys’ listserv initiated by a Georgia ElderLawAnswers member, Maryland joins at least 10 other states that permit transfers by those over 65 to a pooled trust. These states are, in addition to Maryland: Alabama, California, Colorado, Florida, Iowa, Massachusetts, Michigan, Ohio, Utah and Wisconsin. (from www.elderlawanswers.com)
However, the use of pooled trusts is not a panacea for asset protection from nursing home costs. There are restrictions on fund usage, maintenance expenses, and other profound issues. However, for some people, this may be an attractive way to set aside funds to pay for items Medical Assistance will not cover. This policy clarification by CMS is an important, and positive, development for Maryland seniors.
Online Legal Forms Company Sued
Monday, June 28th, 2010 Adam RoaLegalZoom, one of the most prominent sellers of do-it-yourself wills and other estate planning documents, is the target of a class action lawsuit in California charging that the company engages in deceptive business practices and is practicing law without a license.
The lawsuit was filed in Los Angeles Superior Court on May 27, 2010, by Katherine Webster, who is the niece of the late Anthony J. Ferrantino and the executor of Mr. Ferrantino’s estate.
Knowing that he had only a few months to live, Mr. Ferrantino asked Ms. Webster in July 2007 to help him use LegalZoom to execute a will and living trust. Based on LegalZoom’s advertising, Ms. Webster says she believed that the documents they created would be legally binding and that if they encountered any problems, the company’s customer service department would resolve them.
But after the living trust documents were created and signed, Ms. Webster could not transfer any of her uncle’s assets into the trust because the financial institutions that held his money refused to accept the LegalZoom documents as valid. Ms. Webster tried to get help from LegalZoom, with no success. The trust was still not funded when Mr. Ferrantino died in November 2007.
Ms. Webster was forced to hire an estate planning attorney, who petitioned the court to allow the post-death funding of the trust. The attorney then had to convince the banks to transfer the funds — a more difficult task following Mr. Ferrantino’s death. The attorney also discovered that the will LegalZoom created for Mr. Ferrantino had not been properly witnessed. All this cost Mr. Ferrantino’s estate thousands of dollars.
The lawsuit claims that Ms. Webster and others like her relied on misleading statements by LegalZoom, including that LegalZoom carefully reviews customer documents, that it guarantees its customers 100 percent satisfaction with its services, that its documents are the same quality as those prepared by an attorney, and that the documents are effective and dependable.
“Nowhere in the [company's] manual do defendants explain that using LegalZoom is not the same as using an attorney and that its documents are only ‘customized’ to the extent that the LegalZoom computer program inputs your name and identifying information, but not tailored to your specific circumstances,” the lawsuit states, adding that “the customer service representatives are not lawyers and cannot by law provide legal advice.”
Ms. Webster is suing not only on her behalf but on behalf of anyone in California who paid LegalZoom for a living trust, will, living will, advance health care directive or power of attorney. The lawsuit estimates this class embraces more than 3,000 individuals.
“LegalZoom’s business is based on nurturing the false sense of security that people do not need to hire a traditional attorney,” says San Francisco attorney Robert Arns, one of the attorneys who filed the lawsuit. “The complaint points out that LegalZoom advertises that you don’t need a real attorney because its work is legally binding and reliable. That’s misleading. Improperly prepared estate planning documents are a ticking time bomb that can result in improper tax consequences and other items that could cost the estate and heirs huge sums.”
“LegalZoom preys on people when they’re at their most vulnerable, when they are of advanced age or poor health and need a will or a living trust,” adds San Francisco elder abuse attorney Kathryn Stebner, Ms. Webster’s lead counsel.
One of the defendants named in the suit is LegalZoom co-founder Robert Shapiro, who appears on the LegalZoom Web page and TV ads and who is best-known for being one of O.J. Simpsons attorneys.
This is not the first suit against LegalZoom. In December 2009, a Missouri man who paid LegalZoom to prepare his will sued the company for engaging in the unauthorized practice of law (Janson v. LegalZoom). The lawsuit is also seeking class action status. LegalZoom is trying to have the case removed from Missouri state court to the United States District Court for the Western District of Missouri.
From www.elderlawanswers.com.
Maryland Power of Attorney – Part 2
Friday, June 11th, 2010 Adam RoaMaryland Power of Attorney
Upon review of the new financial power of attorney statutory language for both the short and long form, there are many good aspects with the new provisions. There are enforcement provisions in this new law. Before, a bank could refuse to honor your power of attorney and there would be virtually no way to force the bank to honor your power of attorney other than jump through their unique requirements. The agent must keep a record of all receipts, disbursements and transactions. There are other requirements as well. The execution requirements will change. While there is bound to be much confusion when this is enacted on October 1, 2010, overall, this was a good move by the Maryland General Assembly and this a positive development for our seniors. There are more safeguards into its use. There more defined routes to attack misuse. There is language that can be used to make this enforceable.
If you would like to know the background of why the new power of attorney laws are called “Loretta’s Law” please follow this link:
Maryland Power of Attorney
Friday, May 28th, 2010 Adam RoaMaryland Power of Attorney
The Maryland General Assembly just passed and the governor signed into law sweeping new changes regarding Maryland financial powers of attorney (Maryland Uniform Power of Attorney Act – Loretta’s Law). There are a whole host of changes including new execution requirements, new statutory language, enforcement provisions, financial agent disclosure and non-disclosure requirements, and agent record keeping responsibilities. The new law goes into effect October 1, 2010.
Pooled Trusts
Wednesday, May 19th, 2010 Adam RoaIn a landmark opinion by the Department of Health and Mental Hygiene, clarity was reached that transfers into a pooled trust can occur without triggering the Medicaid penalty even if the trust beneficiary is over 65 years of age. The question for many is: 1) when a loved one is in a nursing home can the assets be protected from nursing home expenses and 2) can we set aside and used a loved one’s assets to pay for things Medicaid cannot pay? For years, the frustrating answer for the use of pooled trusts was “no.” The problem was the transfer into the trust created a Medicaid penalty. This is a period of time were the applicant will not qualify for Medicaid (i.e. Medical Assistance in Maryland) under any circumstances for a period of months. So, if the applicant transferred $68,000 into the pooled trust (in 2010), then if she needed Medicaid relief within the next five years she will not qualify for Medicaid relief for ten months (at best, starting when she first seeks benefits). Removing the penalty period makes sense both from a Maryland policy perspective and a would be applicant’s perspective. However, even lifting the penalty transfer provisions, the use of a pooled trust is not for every would be Medicaid recipient interested in asset protection. Please contact your elder law attorney to see if the pooled trust route is the right choice for your circumstance.
Patient Protection and Affordable Care Act (2010)
Wednesday, May 12th, 2010 Adam RoaOverview
The new health care law, the Patient Protection and Affordable Care Act was enacted on March 23, 2010. The critical issue is the impact this will have on our elderly population. At first blush, the impact may indeed be positive. However, upon further review, in many instances, it is uncertain how or if this new law will have a positive impact.
Long Term Care Insurance Impact
For one, it creates the first publically funded long term care insurance program (called the Community Living Assistance Services and Supports Act. Whether this will turn into a program with long term care insurance benefits that are better and/or less expensive than what one may find on the open market is entirely unknown.
Medicaid Payments for Nursing Services at Home
Another important aspect of the new law are the provisions intended to end Medicaid’s bias to provide nursing home level of care only in nursing homes rather than for care at one’s home (Act. Sec. 2406(a) of the Affordable Care Act). While this appears at first to be promising, what was actually passed was simply a promise for the next congressional session to address this issue. It is entirely uncertain whether Congress will address this issue and better effectuate the Supreme Court decision in Olmstead v. L.C. (1999) that provided that individuals with disabilities have the right to receive their long term services and support in the community rather than in an institutional setting. For Maryland purposes, such a waiver program exists (i.e. Medicaid or Medical Assistance Waiver). However, it is poorly underfunded with a waiting list measured in years with no realistic application for those folks needing nursing home level of services at their home.
Nursing Home Rating System
A good move with potential impact over the next several years is the directive issued to the Government Accountability Office to conduct a study on the Five-Star Quality Rating System of nursing homes issued by the Center for Medicare and Medicaid Services (Act. Sec. 6107). This launched in December 2008 gives nursing homes a rating between one and five stars. A five-star designation means the facility ranks “much above average” compared to other facilities in its state, while a one-star designation means that a facility ranks “much below average” in the state. The concern over the accuracy and reliability of the rating system was so pronounced that attorney generals from over 30 states sent a letter to CMS asking them to suspend the program. The idea of a five star rating system is ideal for many seniors and their families. Insuring their accuracy and reliability is only in the best interest of members of our elderly population. The administration hit a home run with this section.
This is but a sampling of the various impact items. As greater clarity exists and its precise impact on Maryland seniors is known, it will be posted here.